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Present: Mr. Justice Wendt and Mr. Justice Grenier.
PUNCHI BANDA, Executor of the Last Will of BandaraMenika, v. YUSTJBU LEBBE.
D. C., Kandy, 18,697.
Judicial settlement of estate—Decree, effect of—" Probate jurisdiction ” of
District Court—Judgment in rem.
A decree made by a District Court in a proceeding for the judicialsettlement of an estateis nota decree madeinits“ probate
jurisdiction ” within themeaningof section 41oftheEvidence
Ordinance, and does not operate as a judgment in rem.
WendtJ.—“ Probatejurisdiction ”doesnot meanthesame
thing as” testamentaryjurisdiction.”It islimited tothepower
in the exercise of which the Court grants or refuses probate of atestamentary paper.
PPEAL from a judgment of the District Judge of Kandy. Thefacts are fully set out in the judgment of Wendt J-
H. J. G. Pereira, for the plaintiff, appellant.
Vam. Langenberg, for the defendant, respondent.
Cur. adv. visit.
October 12, 1908. Wendt J.—
This is an interlocutory appeal against the ruling of the DistrictJudge upon an issue of law as to estoppel. The question arose in.this way. The lands which are the subject of the action were theacquired property of one Siyatu, who died intestate in 1889, survivedby his widow Ran Menika and two daughters Bandara Menika andTikiri Menika. Ran Menika , in 1905 took out letters of adminis-tration to his estate. In 1906 the present plaintiff, as executor ofBandara Menika, applied for a judicial settlement of the administra-trix’s account on the footing that his testatrix was the sole heiress,her sister having forfeited her inheritance by adoption into anotherfamily. In his petition the present plaintiff alleged that theadministratrix had transferred Siyatu’s lands in equal moieties toTikiri Menika and Bandara Menika’s heirs, reserving to herself a.life interest. The petitioner averred that Ran Menika, the adminis-tratrix, had no right whatever to the estate. In the result the Courtheld that Bandara Menika had been sole heiress of her father, andordered the administratrix to account on that footing. Nothingwas said expressly in the judgment or the order as to Ran Menika’sright to a life interest. The decision of the District Judge wasaffirmed in appeal. It appears that in June, 1903, Ran Menika andTikiri Menika had sold and conveyed Tikiri Menika’s alleged half
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share of the lands in question and Ban Menika’s alleged life interestto the defendant, who is in possession, and the object of this actionis to vindicate the lands from him. Ban Menika is still alive.
In this state of the facts the first two issues of law framed wereas follows:—
Is the defendant estopped by the judgment in the proceedings
in D. C., Kandy, 2,360, from denying that Bandara Menikawas entitled to the whole of the lands in dispute?
Is the defendant estopped by these proceedings from claiming
a life interest in Ban Menika in the lands in question?
The first of these issues the learned District Judge decided inthe affirmative, on the ground that the decree in the judicial settle-ment was a decree in rem, which under section 41 of the EvidenceOrdinance bound the whole world. The second issue he decided inthe negative, on the ground, as I understand it, that the questionof Ban Menika’s life interest was not in issue in the judicial settle-.ment. The defendant has not appealed against the adjudicationon the first issue, but his counsel has contended, as he was entitledto do, that that adjudication was wrong. The plaintiff has appealedagainst the decision of the second issue, and had it been necessary toReview the District Judge’s reasons for that decision, I should havebeen prepared to hold that Ban Menika’s right had been directlyput in issue by paragraphs 4 and 5 of the plaintiff’s petition.
In my opinion the appeal fails, because the decree for judicialsettlement was not, as plaintiff contends it was, a decree of theDistrict Court in the exercise of probate jurisdiction. The rule thata judgment binds only the parties to it and their privies is such afundamental rule and so salutary in its effects that the exception toit in the case of what are comprehensively called judgments in remmust be strictly construed with a due regard to all the safeguardsenacted by the law. Although the term “ judgments in remis not itself mentioned in section 41 of our Evidence Ordinance,which is a re-enactment of section 41 of the Indian Evidence Act,we know that the latter was intended to embody the law relating tothe effect of those judgments, as declared by Sir Charles Peacock,Chief Justice of Calcutta, in Kanhya Lall v. Radha Chum1 (seeReport of the Select Committee on the Bill, Ameer AU and Woodroffe,2nd edition, App. p. xlii.). According to the section the judg-ment must, in a case like the present, be pronounced in theexercise of probate jurisdiction, and must be one which confersupon or takes away from any person any legal character, orwhich declares any person to be entitled to any such character.It is then conclusive as to the possession or non-possession ofthat character, according to the declaration in the judgment.
“ Probate jurisdiction ” does not mean the same thing as ourterm “ testamentary jurisdiction, ” which includes the control of
i (1867) 7 W. B. 889.
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1908.the administration of the estates of deceased persons by executors
October 1Z. and administrators. It must be limited to that power of the CourtWendt j. by which it grants or refuses probate of a testamentary paper, andthereby conclusively authenticates the paper as containing the lastwill of the deceased. It declares the executor named in the will tobe entitled to that legal character. Perhaps a grant of letters ofadministration also comes within the section as conferring a legalcharacter, and will, while unrevoked, be regarded as conclusive of theadministrator's provision of that character, but not of the groundsupon which the grant proceeded, viz., that the grantee was the nextof kin or a creditor. I am clearly of opinion that a decree for judicialsettlement is not one made in the exercise of the Court’s “ probatejurisdiction. ” It comes at a later stage, when the Court has alreadygranted probate or letters and is functus officio, so far as thatspecial jurisdiction is concerned. It may deal with questions ofconstruction of a will, or with questions of kinship and consequent,rights to distributive shares of the estate, as to which the Court’sadjudication would not fall under section 41, but only bind partiesand their privies. Section 739 of the Civil Procedure Code, definingthe effect of a decree of judicial settlement, declares that it shallhe conclusive evidence .against all parties who were duly cited orappeared and all persons claiming under them of certain specifiedfacts and no others; and among the facts specified is not includedany determination as to the next of kin of the. deceased- The Court,therefore, in making the decree now relied upon by plaintiff, couldnot have regarded itself as proceeding in rem, with the effectof binding the whole world, and that is a cogent reason for notextending the conclusive operation of the decree beyond the actualparties to the proceeding in which it was pronounced.
The appeal must therefore be dismissed, and the case remittedfor trial in due course. If, however, the ruling on the first issue,against which defendant has not appealed, were allowed to stand,the District Judge would be bound by it to reject any questionof Bandara Menika’s sole heiress-ship. The defendant, in the finalappeal, would be entitled to re-open the question, and, according toour view of the law, would succeed, thus necessitating a new orfurther trial. To avoid this inconvenience, I think we ought, inrevision, to set aside the ruling on the first issue, leaving defendant-free to dispute the plaintiff’s Claim that Bandara Menika was herfather’s sole heiress.
The plaintiff will pay the defendant the costs of the hearing in theDistrict Court and of the appeal.
I agree to the order proposed by my brother, and have nothing toadd to the reasons given by him in. support of it.
Appeal dismissed: case remitted.
PUNCHI BANDA Executor of the Last Will of Bandara Menika, v. YUSUBU LEBBE